Retributive Damages: A Theory of Punitive Damages as Intermediate
Sanction, Professor Dan Markel argued that the purpose of punitive
damages should be to advance—in part—the public’s interest in
retributive justice. These “retributive damages” should be
an expressly intermediate sanction, independent of other remedial or
penal options. Markel provided the basic structure of these retributive
damages; however, the theoretical nature of the proposal did no more
than touch on how they would operate in practice.
How Should Punitive Damages Work?, Markel addresses the next question:
how should punitive damages, including retributive damages, work?
This question is especially timely in light of the Supreme Court’s
recent decision in Philip Morris USA v. Williams, which held
that juries may not consider the harms to nonparties in determining
punitive damages awards.
make punitive damages work, Markel argues that we must first separate
retributive damages from other extracompensatory damages meant to achieve
cost internalization or to vindicate the victim’s dignity interests.
Because these three purposes are distinct, conflating them carries the
danger of both under- and overprotection of various defendants. Once
we understand these purposes and the distinctions between them, we should
be able to map them on to our existing institutional design for civil
damages. Markel begins, first, by explaining why and how defendants
should enjoy certain procedural protections depending on which purpose
the damages serve, and second, by addressing two critical implementation
issues associated with this pluralistic scheme of extracompensatory
damages: insurance and settlement.